Myanmar’s Human Rights and Humanitarian Violations in Kachin State and its Duty to Investigate, Prosecute, and Provide Victims with Remedies

1. Conflict and Human Rights Violations in Kachin State

Kachin state, Myanmar (Burma), is currently involved in a civil war between the Myanmar military (Tatmadaw) and Kachin Indendence Army (KIA), in which serious human rights violations are occurring, predominantly by the Tatmadaw against civilians of Kachin and north Shan states.

The Kachin conflict originally began in 1962, but a ceasefire held from 1994 until it was broken in 2011.[1] Since then, the Tatmadaw has conducted major military operations in Kachin state, and sometimes northern Shan state, which continues to the present. Since the second Kachin conflict began, thousands have been killed, over 100,000 civilians have been displaced, and there have been widespread and illegal use of systematic rape, extrajudicial killings, torture, forced labor, land takings, landmines, child soldiers, and other human rights violations as described below. While violations have been alleged from both the KIA and Tatmadaw forces,[2] Tatmadaw alleged violations are significantly more serious and widespread.

From August 31 to September 3, Myanmar held a major peace conference with many ethnic armies. [3] However KIA representatives did not sign any peace agreement, explaining that more discussion is needed before they will sign a deal.[4] While the conferences are planned to continue every six months until agreement is reached, the Kachin conflict is continuing and can be expected to continue for some time.[5]

2. Human Rights and Humanitarian Violations in Kachin State

This section describes violations by the Myanmar military against Kachin civilians in the conflict under international human rights law (IHRL)[6] and international humanitarian law (IHL)[7] followed by Myanmar’s duties under both IHL and IHRL to investigate violations, prosecute alleged violators, and to provide effective remedies to victims.

A. Rape and Sexual Violence

The Women’s League of Burma has documented more than 100 rapes of women and girls largely in Kachin state in 2014, where rape is used as a weapon by the Tatmadaw.[8] Some women are also coerced into “sexual slavery” by the Tatmadaw to be kept with a unit for soldiers’ use.[9] UN Secretary General Ban Ki-moon, in the March 2015 report “Conflict-Related Sexual Violence” to the UN Security Council, called on the government of Myanmar to “fully investigate and respond to current and historical human rights violations and abuses, including crimes of sexual violence.”[10] However, no effective action has been taken.

Rape and sexual violence is an IHL war crime via Geneva Convention Common Article 3(a), (c), and a crime against humanity to the extent it systematically targets Kachin women.[11] For IHRL, rape and sexual violence are violations of UDHR Article 5 right to freedom from inhuman or degrading treatment. Under CEDAW, Myanmar also has a duty to implement measures to end the practice of rape and sexual violence against women.[12]

B. Extrajudicial Killings

Extrajudicial killings of civilians by Myanmar soldiers, who have not been prosecuted, has been a common occurrence in the Kachin conflict, including the killing of a first-year computer university student Gum Seng Aung, shot by soldiers in Myitkyina, Kachin State in June of 2016;[13] the gangrape and murder case of two Kachin volunteer teachers in Kaung Khra, Shan State in 2014;[14] and the shooting death of 14-year-old student Ja Seng Ing by a group of soldiers in Hpakant, Kachin State, as well as the prosecution of her father for complaining about the incident to Myanmar’s human rights commission.[15] The military provides unconvincing explanations to excuse such killings and almost never punishes soldiers for the killings, which prevents justice and fails to deter further killings as soldiers act with impunity.[16]

Extrajudicial killings of civilians are a clear war crime under IHL under Geneva Convention Common Article 3(a) and (d),[17] and in IHRL under UDHR Article 3 right to life.

C. Forced Labor

Kachin civilians are subject to forced labor by Tatmadaw soldiers for tasks such as being porters to carry heavy weapons and food supplies, human minesweepers, guides in conflict areas, and sexual slaves for soldiers, for long periods of time.[18] In one example, the army detained a farmer for over two weeks, torturing him and forcing him to guide them through combat areas in Mansi Township, Kachin state.[19] Forced laborers are routinely subjected to severe physical abuse by soldiers, and one former porter reported that the only ways out of forced labor is either escape or death.[20]

The Fourth Geneva Convention, Articles 40 and 51, prohibits forced labor of civilians in work “directly related to the conduct of military operations,” making the Tatmadaw’s conduct a clear war crime.[21] Under IHRL, Myanmar is prohibited from practicing forced labor under the Forced Labor Convention.[22] The exception for “compulsory military service” does not apply to these cases because the labor is not a purely military character and the harsh activities and treatment do not fall within the scope of the exception.[23]

D. Land and Property Confiscations from Villagers

Tatmadaw forces regularly pillage, destroy, and confiscate property from Kachin villages without consent or compensation, such as food, supplies, money, and most significantly large areas of land. Due to the high displacement by conflict, over 100,000 people, there are reports of significant land seizures of farmland and other lands by the army, leaving displaced peoples landless and without recourse to demand return of their land.[24] According to one activist, “Land confiscations in Kachin have been so rampant there is little vacant land left.”[25]

The Myanmar government has pledged a program to return and give restitution for land takings under the National Land Use Policy (NLUP) of Myanmar, adopted in January 2016.[26] The parliament member in charge of the effort, Sein Win, has promised to solve all cases within one year, although he estimates the number of cases are in the hundreds of thousands.[27] There are significant problems with the program including capacity limitations; the fact that land may be divided and sold many times; and documents are often incomplete, lost or destroyed.[28] Further, there are concerns that the military may not respect the government’s efforts and continue the practice and impede land returns and restitution.[29]

Confiscations, seizures, or destruction of civilian property and land (even government owned)[30] are prohibited in IHL under Geneva Convention I, Article 50, Geneva Convention II, Art. 51, and Geneva Convention IV Arts. 53 and 147 rules of usufruct, which prohibit them when not justified by military necessity.[31]

Under IHRL, UDHR Art. 17(2) prohibits the arbitrary deprivation of private or joint property from persons,[32] and the taking of displaced persons’ property is specifically prohibited by Principle 2(1) of the “UN Principles on Housing and Property Restitution for Refugees and Displaced Persons” (Pinheiro Principles).[33] Section V of the Pinheiro Principles further provides that states should establish procedures, institutions, and mechanisms to enforce land and property restitution claims, and support and implement them in a fair, non-discriminatory, timely, and effective way in practice.[34]

E. Torture, Physical Abuse, and Inhuman Treatment

The Tatmadaw and military intelligence conducts systematic physical abuse and torture against local Kachin villagers to collect information about the local area and KIA forces, coerce in order to seize property or force labor, intimidate, punish, and discriminate.[35] Reported torture tactics included beatings, sexual assaults, and burnings, as well as inhuman and degrading treatment such as victims being told to strip, dig their own graves, or lick their own blood from the ground after beatings.[36] One group gathered evidence for at least 60 instances of torture of Kachin civilians from 2011-2014.[37]

Cruel treatment and torture are explicitly prohibited in IHL as war crimes by Geneva Convention Common Article 3(a).[38] Torture is customarily defined in IHL by the International Criminal Court provides definition of “severe physical or mental pain or suffering” for “obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind,”[39] which the Myanmar military’s conduct easily meets.

Under IHRL, UDHR Article 5 prohibits torture under the customary Convention Against Torture (CAT) definition, Article 1, which substantially mirrors the ICC definition as it applies to the Myanmar military.[40]

The conflict in Kachin and northern Shan states have displaced nearly 100,000 civilians to refugee and IDP camps in Kachin State, Shan State, and the border areas of China.[41] While IDPs in government-controlled areas have access to UN conveys and international aid, those in remote areas—such as Sumprabum Township, KIA-controlled areas, and along the China border—do not have access to humanitarian aid, although they have the direst needs for assistance. This is because the government of Myanmar blocks international aid for IDPs on security grounds.[42] Only a small number of UN conveys can reach KIA-controlled areas.[43]

The duty to provide access to humanitarian aid is a direct IHL obligation under Geneva Convention IV, Art. 23.[44] To the extent the aid may be systematically being withheld specifically to Kachin civilians asKachin for the purpose of their destruction, the conduct constitutes a crime against humanity.[45] Under IHRL, the obligation to provide humanitarian assistance is part of the obligation to fulfill persons’ right to life and freedom from inhuman treatment, UDHR Articles 3 and 5.[46]

3. Duties to Investigate, Prosecute, and Give Remedies under IHL and IHRL

As described above, the IHL and IHRL violations occurring in the conflict in Kachin state by the Tatmadaw constitute war crimes and serious human rights violations against Kachin civilian victims.

The major duty of the government of Myanmar vis-à-vis these violations, under both IHL and IHRL, is to investigate allegations of violations against victims and prosecute suspects if justified by evidence,[47] and to provide effective remedies to victims.[48]

Under these duties, remedies should be adequate, effective, prompt, and appropriate, and include restitution, reparation and compensation, satisfaction—such as ending the violations, a public acknowledgement or apology, and a guarantee of non-repetition by implementing measures—and providing victims access to justice and information. The UN “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of IHRL and Serious Violations of IHL” further specifies the guarantee of non-repetition by calling for effective civilian control of military and security, ensuring the military abides by international standards, strengthening the judiciary, training military and security forces, observance of codes of conduct, promoting prevention and monitoring mechanisms, and legal reforms.[49]

Regarding Immunity and Myanmar’s Constitution

Myanmar’s constitution Section 445 gives immunity from any “proceeding”, such as prosecution, to “any member of the Government, in respect of any act done in the execution of their respective duties.”[50] The clause has been applied by the military to all members of the military, soldiers and officers, for any actions including criminal conduct. However, both IHL and IHRL have the general principle that legality in domestic law does not excuse violations of international law.[51] Thus, persons who violate serious IHL and IHRL duties are still responsible in international law regardless of domestic immunity, and the duties of investigation, prosecution, and remedies remain in effect.

4. Recommendations

Human Rights Now, a Tokyo-based international human rights NGO, expresses concern about the government of Myanmar’s serious violations of international humanitarian and human rights law by the military’s abuses against civilians in the conflict in Kachin state, and offers the following recommendations:

Immediately cease all violations against Kachin civilians of Myanmar’s IHL and IHRL duties as described in this report, including rape and sexual violence; extrajudicial killings; forced labor; confiscations of land and property; torture, physical abuse, and inhuman treatment; and the blocking of humanitarian aid.

Establish measures to ensure that all alleged crimes and violations of IHL and IHRL are investigated and suspects timely prosecuted by a fair judicial process when justified by evidence.

Establish measures to ensure that all Kachin civilian victims of crimes and violations of IHL and IHRL are provided with timely, adequate, and effective remedies including, as appropriate, restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition through military training and specific preventative measures.

Recognize that the immunity of soldiers under 2008 Constitution Section 445 does not have legal power to excuse Myanmar’s duties under IHL and IHRL to investigate and prosecute serious violations of IHL and IHRL duties and provide victims with remedies, and establish measures to implement these obligations in domestic law, including amendment of Section 445 to bring it in conformity with Myanmar’s international duties.

Provide the UN and national and international humanitarian agencies with free access to all areas of Kachin and Shan states to provide humanitarian aid to displaced persons, and establish measures to provide and facilitate the movement of humanitarian aid to displaced civilians.

Ratify core international human rights conventions, such as the International Covenant on Civil and Political Rights (ICCPR) and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and its Optional Protocol.

[2] The most major reported IHRL and IHL issues with the KIA are the recruitment of child soldiers, https://childrenandarmedconflict.un.org/countries-caac/myanmar/, also practiced by the Tatmadaw and prohibited by Art 1 of the CRC Op Prot on the Involvement of Children in Armed Conflict, and use of landmines which indiscriminately harm civilians, restricted by the customary IHL rule that “particular care must be taken to minimize [landmines’] indiscriminate effects”, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule81. (Cf. a Tatmadaw representative’s admission in September 2016 of continuing landmine production and use. http://burmamineban.demilitarization.net/?p=706) There were no reports of use of torture by the KIA.

[5] Fighting is still being reported as of 10 Oct. 2016. http://karennews.org/2016/10/burma-army-uses-jets-against-kachin-and-wounded-kia-soldiers-claim-government-forces-using-chemicals-in-attacks.html/

[6] Myanmar is a member of the following IHRL conventions (http://tbinternet.ohchr.org/_layouts/ TreatyBodyExternal/Treaty.aspx?CountryID=119&Lang=EN), Convention on the Rights of the Child Optional Protocol on Child Soldiers (CRC Op. Prot. 2, http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPACCRC.aspx), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx), and subject to customary duties articulated by the Universal Declaration of Human Rights (UDHR, http://www.un.org/en/universal-declaration-human-rights/) and principles articulated by expert bodies such as the Office of the High Commission of Human Rights (OHCHR).

[7] Myanmar is a member of the Geneva Conventions (https://www.icrc.org/eng/assets/files/publications/icrc-002-0173.pdf) and subject to customary IHL, articulated by the International Commission of the Red Cross’s (ICRC) Database of Customary IHL (Database, https://ihl-databases.icrc.org/customary-ihl/eng/docs/Home), which among other things extends Geneva Convention duties to non-international conflicts like the Kachin internal conflict. Thus, the Myanmar military is subject to the customary IHL versions of the Geneva Convention duties listed in this report for its conduct in the Kachin internal conflict.

[8] Katya Cengel, “Rape is a Weapon in Burma’s Kachin State, but the Women of Kachin are Fighting Back”, Time, 11 Feb 2014, http://time.com/6429/burma-rape-in-kachin/.David Brunnstrom, “Myanmar still using rape as a weapon of war: women’s group”, Reuters, 14 Jan 2014, http://www.reuters.com/article/us-myanmar-military-rape-idUSBREA0D1I020140114.

[16] Only one case can be found of the Tatmadaw ever admitting and prosecuting soldiers for murder for reasons of political calculation, the exception that proves the rule of impunity. Wa Lone, “In rare move, Myanmar military admits soldiers killed five villagers”, Reuters, 20 Jul 2016, http://www.reuters.com/article/us-myanmar-military-massacre-idUSKCN10016W.

[23] Cf. International Commission of Jurists, “Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR”, Principles 15-18, http://icj.wpengine.netdna-cdn.com/wp-content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf.

[30] All land in Myanmar is government owned. UNHCR, “Questions and Answers on Land Issues in Myanmar”, www.data.unhcr.org/thailand/download.php?id=297. That said, civilian residents’ use of land may be said to be private-like in its function for the purposes of the IHL and IHRL rights against arbitrary takings described here. Private land takings are absolutely prohibited. Public land takings require military necessity.

[39] Elements of Crimes for the ICC, Definition of torture as a war crime, Rome Statute of the ICC, ISBN No. 92-9227-227-6, 18 July 1998, Article 8(2)(a)(ii) and (c)(i)). Unlike the definition in IHRL, defined by Convention Against Torture, 10 Dec. 1984, http://www.ohchr.org/en/ProfessionalInterest/pages/cat.aspx, Article 1, torture as a war crime under IHL does not need to be conducted by a public official, so may apply to possible commissions by non-state KIA soldiers as well.

[40] In the Kachin case, there is no substantive difference between definitions as there have not been reports of torture against KIA forces, a non-state group to which CAT’s definition would not apply.